Legal Aspects of US Surrogacy for Beginners

Lawyers and the law play a critical role in a gestational surrogacy arrangement. From the initial contract with your surrogacy agency through your safe return home with your child, competent legal advice and processes are necessary to navigate your journey.

Getting Started

At the initial stage of a surrogacy journey, intended parents who choose to work with a surrogacy agency will enter into a comprehensive contract with the agency. Intended Parents will also engage an IVF clinic for professional services and will sign a contract that is sometimes reviewed by counsel. Further, depending on the services provided by the surrogacy agency, the intended parents may have to contract with an egg donor agency.

All of these contracts will have spell out the specific obligations and liabilities of the parties. The contracts will use terminology and clauses that may be foreign to the intended parents so many choose to have an attorney review the contracts on their behalf. It is best to engage an attorney with experience in the assisted reproductive technology (ART) field for such a review.

Matching

After choosing an agency and a clinic, Intended Parents will begin the search for a surrogate and a donor if needed. During this “matching” stage, lawyers play a critical role in making sure the surrogates and/or donors are coming from states that are legally conducive to the Intended Parents’ wants and needs from a legal standpoint.

The family law legal system in the United States is state driven and each state will have their own laws concerning surrogacy and parentage. Thus, the state where the surrogate resides or intends to deliver will dictate the legal work for the intended parents. The attorney involved will need to make sure that the state where the surrogate resides and intends to deliver allows for surrogacy and that the specific legal work the intended parents need can be completed. This is very important for couples that require pre-birth orders or other specific legal work as each state has its own set of laws and regulations concerning the parentage of the Intended Parents. Some states allow both partners of a same sex relationship or marriage to be placed on the child

[ren]’s birth certificate while others only allow the biological parent to be placed on the birth certificate. Thus, it is crucial to make sure the legal work that is necessary and required by the Intended Parents can occur in the state[s] where they are matched. For intended parents from outside the United States (or those with specific citizenship needs), it is also important to work with legal specialist from their home countries for immigration and citizenship needs. It is vitally important that these international intended parents follow their home country instructions as to not jeopardize their safe return home.

Contracts

After the match is made official with the surrogate and/or donor, the Intended Parents will also need contracts by and between them and the surrogate and/or donor. Intended Parents will be represented by counsel who will draft and negotiate the contract on their behalf. The contract must comply with local regulations concerning surrogacy in order for the Intended parents to be fully protected under that state’s laws and regulations. The surrogate and/or donor will also be represented by independent counsel during this stage. Again, it is important to work with attorneys with experience in the ART field when drafting/negotiating these contracts as to make sure all parties are fully protected under the law.

Estate Planning Prior to the creation and transfer of embryos, it is also important for intended parents to create or revise estate planning documents. The reason for this is twofold. First, intended parent couple will be jointly creating embryos. Couples should make sure to include language in their estate planning documents concerning the disposition of the embryos should either of the intended parents pass away. Second, prior to transferring embryos, intended parents should make sure their estate planning documents reference the surrogacy and include plans for guardianship for the children should one or both intended parents pass away while the surrogate is pregnant.

The IVF process will also include legal interplay. All parties will sign certain waivers and consents concerning the medical procedures as well as release forms allowing intended parents to receive medical information and speak to doctors.

Establishing Parentage

The surrogacy arrangement culminates with a parentage proceeding to terminate the surrogate’s, donor’s and/or surrogate’s presumed rights to the child[ren] and to establish the intended parent[s] parentage rights to the child. As mentioned earlier, each state will have its own legal procedure and framework to complete this process. Some states have pre-birth orders whereby intended parents petition the court prior to the birth of their child[ren] to establish their parental rights. Usually, both parties are represented by attorneys and only the attorneys have to attend the hearing.
Some states require a child to be born prior to granting such rights. In these cases, legal documents are put in place with the hospital in advance of birth to give the intended parents all the rights to medical decisions for the child[ren] while in the hospital. The court order usually occurs within 10 days of birth.

Finally, some states require the legal process to occur through a second parent adoption after birth. In these cases, the biological parent’s right will be established through a form at the hospital and the non-biological parent will do a near immediate second parent adoption to establish his/her rights. Depending on the state where the intended parents reside, it is sometimes in their best interest to complete a second parent adoption to fully secure their parental rights.